YORK, Maine — In another court victory for the town of York and lawn care businessman Joshua Gammon, a superior court judge this month denied an appeal challenging two Board of Appeals decisions last January, filed by four abutters of the Gammon property.
Justice John O’Neil said plaintiffs Daniel Raposa, Michael and Deborah Archambault and Michael Kofman “failed to demonstrate that the BOA abused its discretion, committed legal error or made findings that were not supported by substantial evidence” in either of their decisions.
In one matter, the Board of Appeals overturned a Planning Board decision that had to do with the size of Gammon’s York Street property. Gammon, told that his lot was too small for a nonconforming use in a shoreland zone, had been directed by the Planning Board in 2016 to increase the size of his property. A year later, with a purchase and sale agreement on an abutting property owned by Ronald Peris and a land swap deal with abutter Diane Marcuri, he came back with his revised plans.
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The Planning Board at that time denied he had met the lot size requirement, saying the lot he created was a “flag lot” — skinny at one end and wide at the other, which is against zoning ordinances. Board members also discussed whether the lawn care business was an appropriate use for that property, although they were told by the town attorney that use was a separate issue and should not form the basis for the board’s decision.
Gammon appealed to the BOA, which in January of this year overturned the Planning Board’s decision. BOA members said at the time the Planning Board was focused on use of the land almost to the exclusion of the lot size. In fact, they said, the lot meets the town’s guidelines.
In his ruling, O’Neil concurred, saying Gammon had submitted a viable lot size plan, and the BOA “was not presented with any reason to doubt the accuracy of the figures contained within the drawings. This alone constitutes substantial evidence that the Gammon and (abutter) Marcuri lots satisfied the applicable area and frontage requirements.”
To date, the purchase and sale agreement with Peris to create the conforming lot is still pending. Raposa has argued at recent Board of Selectmen meetings that Gammon is therefore operating illegally because his lot isn’t big enough. But Gammon’s attorney, Matt Howell, said in an email to the board that Peris is ready to sell as soon as pending lawsuits filed by Raposa are settled. Until then, he said, no bank or title company will conduct a closing.
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In the second matter, the plaintiffs are appealing a separate BOA decision. Before the Planning Board deemed the lot size too small, members in 2016 had approved a plan by Gammon and the late Peter Marcuri to merge Gammon’s and Marcuri’s lots together, and then divide that parcel into two separate lots — one for Marcuri’s home and one for Gammon’s business.
Ten months later, the Planning Board signed the plan that reflected the merger, without taking public comment. The plaintiffs, who appealed this action to the BOA, argued the plans should have been signed within 30 days and that the Planning Board did not take public comment before signing them.
Justice O’Neil sided with the BOA, which ruled the time for the public to comment was at the underlying Planning Board meeting in 2016. Moreover, he said, the decision was not made within 30 days “on the advice of the town attorney.”
This was one of two pending lawsuits in the years-long legal dispute between Gammon and, primarily, Raposa. The other sits with the state Supreme Judicial Court. That one is an appeal of a separate lawsuit regarding grandfathered use of the land, which Justice O’Neil dismissed. A decision on that matter is not expected until spring.
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